A Pennsylvania Commonwealth Court judge may be on the verge of "splitting the baby" in his latest ruling on the challenge to the state Republicans' polling place Photo ID law, despite a clear mandate from the state Supreme Court ordering him to either find the new law will not disenfranchise any voters this year, or block it entirely with an injunction.

Last Friday, attorneys representing the petitioners in a lawsuit challenging the legality of the state GOP's draconian polling place Photo ID law, filed a 26-page Post Hearing Brief [PDF] in which they counseled Commonwealth Judge Robert E. Simpson not to defy the state Supreme Court by issuing only a "limited injunction" in the case.

Such a ruling, they argue, could force a minimum of 90,000, but perhaps as many as 1.6 million voters who lack the requisite Photo IDs, to cast provisional ballots --- which are sometimes counted, sometimes not --- during the Nov. 6, 2012 election.

The brief was filed one day after Judge Simpson informed the parties to the case that, despite evidence that there was no conceivable means by which the Commonwealth could supply all of the otherwise eligible voters with the requisite Photo IDs now needed to vote under the new law before the Nov. 6 election, he was inclined to enjoin only that portion of the Photo ID law's provisional ballot section that contains disenfranchising language.

Petitioners contend not only that such an injunction would defy the mandate laid down by the Supreme Court when it vacated Judge Simpson's previous order earlier this month, denying their request for a preliminary injunction, but that it would amount to an "inadequate remedy" that would create "a bifurcated system" that would entail a "naked disenfranchisement" of untold numbers of previously-eligible voters.

From the content of the brief, it is clear that unless Judge Simpson issues a full preliminary injunction barring enforcement of the Photo ID law with respect to the Nov. 6 election, this case will be headed back to the Pennsylvania Supreme Court once again, just over 30 days before the Presidential Election...

Our story so far...

On May 1, 2012, the ACLU of Pennsylvania, the Advancement Project and the Public Interest Law Center of Philadelphia filed Applewhite v. Commonwealth of Pennsylvania [PDF] on behalf of 92 year-old Viviette Applewhite and nine other named petitioners. They alleged that the Keystone State's new Photo ID law, Act 18, violates the Pennsylvania Constitution by depriving the plaintiffs,and hundreds of thousands of lawfully registered voters, of the most fundamental constitutional right --- the right to vote.

At the outset of the initial hearing before Judge Simpson in July, the parties entered a stipulation in which the Commonwealth admitted that they were unaware of a single instance of polling place impersonation --- the only type of voter fraud that can possibly be deterred by polling place Photo ID restrictions --- in the history of the state.

The significance of that admission cannot be overstated. Where the state GOP claimed that polling place Photo ID restrictions were needed "to detect and deter voter fraud" and to "ensure that the public has confidence in the electoral process," petitioners countered:

The only type of fraud addressed by the photo requirement is in-person fraud: someone trying to impersonate a voter at the polling place. The Commonwealth knows of no instances of in-person voter fraud in Pennsylvania and does not claim that such fraud is likely to occur in the November 2012 election. The [PA Dept. of State's] Director of Policy conceded that if the Photo ID Law prevented eligible, qualified voters from voting, it would reduce the integrity of elections. No evidence or testimony was presented at the [original] hearing to show how [polling place Photo ID restrictions] will enhance public confidence in elections.

That admission came against the backdrop of Republican state Rep. Mike Turzai's boast that, by passing the Photo ID law in the legislature, the state GOP will deliver the Keystone State to Mitt Romney in the upcoming Presidential Election.

The evidence and legal arguments produced over the course of the ensuing trial were so compelling that petitioners believed the case for a preliminary injunction amounted to a "slam dunk."

Specifically, competing experts estimated that between 750,000 to 1.6 million eligible voters lacked the requisite ID; that those voters faced not merely substantial but, in many cases, impossible burdens in obtaining the requisite ID, and that the Commonwealth had neither the plans nor the capacity to assure that all otherwise eligible voters could obtain the needed Photo IDs prior to the Nov. 6 election. Even under the flexible federal standard adopted by the U.S. Supreme Court in Crawford v. Marion County Board of Elections an injunction would have been warranted, and there was no way Photo ID could survive the application of strict scrutiny because the right to vote is considered fundamental under the PA Constitution. Since the Commonwealth admitted that there was no evidence of in-person voter fraud, it could not possibly prove that the Photo ID statute was narrowly tailored to achieve a compelling governmental interest.

Nonetheless, on Aug. 15, 2012, Judge Simpson, a Republican, shocked the legal community by issuing a 70-page ruling in which he denied the motion for a preliminary injunction --- a ruling which, among other things, relied upon an infamous 1869 case, Patterson v. Barlow, in which the majority warned of "rogues", "strumpets" and "wandering Arabs" who, it was feared, might commit voter fraud in Philadelphia.

Supreme Court voids decision, sends it back down

On Sept. 18, 2012 the six-member Pennsylvania Supreme Court (3 Republicans; 3 Democrats) was unanimous in its decision to vacate Judge Simpson's decision, but split 4-2 on what to do from there.

Justice Debra Todd, whose dissent was joined by Justice Seamus P. McCaffrey, both Democrats, wrote that Judge Simpson had abused his "discretion in failing to find that irreparable harm of a constitutional magnitude...was likely to occur based on the present structure, timing, and implementation of [the Photo ID statute]." She opined that there was an "impending near-certain loss of voting rights." Justice Todd thought the Supreme Court should have, itself, granted the preliminary injunction, rather than sent it back to the lower court for a new hearing.

The majority, however, remanded the case back to Judge Simpson for another hearing of additional evidence, but under such tight restrictions that the mandate prompted Univ. of Pittsburgh Law Prof. Jessie Allen to observe that the Court had "left very little room here for the trial judge to do anything but enjoin the ID requirement."

Specifically, in remanding the case, the Court imposed upon the state defenders of the law twin burdens of proving that (a) the procedures employed by the Commonwealth for issuance of supposedly "free" ID cards comport with the Photo ID statute's "liberal access" requirement and (b) that no voter will be disenfranchised "for purposes of the upcoming election." The Court ruled that a finding in favor of the Commonwealth could not be based on the mere "assurances" of state election officials that voters would not be disenfranchised by the law.

Judge Simpson was ordered to issue his new ruling no later than this coming Tuesday, Oct. 2.

Evidence mandates injunction

The petitioners' Post-Hearing Brief argues that the Commonwealth did not even come close to approaching the heavy burden of proof imposed upon it by the Supreme Court in its remand.

As they explain in their Sept. 24 Pre-Hearing Brief [PDF], between March 14, 2012, the date the state GOP's draconian Photo ID law was passed and Sept. 19, 2012, "the Commonwealth has succeeded in issuing only 8,795 free secure PennDOT identification cards. The Commonwealth has issued only 1,005 DOS voter ID cards in the one month since those cards became available."

(As we explained after the Supreme Court ruling, the state created the Dept. of State or "DOS" ID cards, for use in voting only, in August, only after discovering that the language in Act 18 requiring the issuance of a supposedly-free "secure" ID could not legally be granted to those without the requisite documentation, such as birth certificate with a raised seal, or a passport, etc.)

The petitioners' pre-trial brief went on on to point out:

Even at the lowest end of [Judge Simpson's] estimate, close to 100,000 registered voters lack acceptable photo identification; the Commonwealth has managed to get cards to only about ten percent of them. Even if the Commonwealth were to issue two or three times the current number of cards in the thirty-nine days before the election, the total number of identification cards issues would still not have met nearly the entire need.

The high end of Judge Simpson's own estimate would exceed 500,000 voters without the newly required ID cards. As noted above, expert testimony during the first trial indicated that as many as 1.6 million otherwise eligible voters may lack the requisite Photo IDs needed to vote on November 6. Moreover, despite the Supreme Court's finding that the burdens of the Photo ID law fell most heavily upon the most vulnerable segments of our society (the elderly, disabled members of our community, and the financially disadvantaged), "PennDOT has not created any mobile ID units or made plans to" provide them with Photo IDs.

During the recent hearings on the case last week, back in the lower court, the petitioners presented evidence that voters had encountered substantial obstacles to obtaining ID cards, including multiple trips to and unreasonably long waits at PennDOT facilities, incompetent staff, erroneous denials and being forced to pay for the IDs, according to the Post-Hearing Brief.

Here is a photo taken, by The Nation's Ari Berman which would seem to butress the petitioner's claim. It was taken at a one of the five Philadelphia PennDOT facilities, "in a city with over a million registered voters", just after the Supreme Court's ruling. The crowded waiting room reveals just some of the obstacles that otherwise-legal voters without state-issued Photo IDs are being forced to contend with, in order to cast their legal vote this year:

On the morning of last Tuesday's hearing, the Commonwealth announced that it had liberalized the requirements for issuance of DOS cards, but the petitioners dismissed this as far too little and way too late. The Supreme Court had mandated that Judge Simpson's decision be based on "the experience since the cards became available," not on future predictions based upon assurances from officials. Moreover, the Commonwealth offered no evidence as to how the Photo ID cards could be developed and delivered to the hundreds of thousands of voters in need of them before Nov. 6.

A provisional ballot is not a vote

Petitioners argue that anything less than the issuance of a full preliminary injunction, barring the Commonwealth from enforcing the requirement that citizens show a Photo ID at the polls in order to vote, would violate the Supreme Court's mandate. "Requiring people to vote by provisional ballot based solely on their lack of photo identification," according to the Post-Hearing brief, "would unnecessarily burden the electoral system, invite chaos on and following election day, threaten the integrity of the election, and lead to the very disenfranchisement that the injunction is intended to prevent."

Petitioners insist that the court not only enjoin the statute's requirement that voters produce a Photo ID on Nov. 6, but sought an order enjoining the Commonwealth from carrying out its $5 million ad campaign that would serve to erroneously inform voters that they must produce a Photo ID in order to vote. They argue that an injunction that addresses only the question of provisional ballots amounts to a "Band Aid" that would unlawfully create a two-tiered voting system in which some ballots, normal ones, would be counted at a higher rate than others, provisional ones.

As explained by the U.S. Elections Assistance Commission (EAC), unlike casting a regular ballot, submitting a provisional ballot is not the same as voting. To the contrary, a provisional ballot is merely a claim by a potential voter that he or she has a right to vote. In their Post-Hearing Brief, petitioners argue that forcing those with Photo IDs to cast provisional ballots creates cumbersome burdens on both voters and election officials --- a point that was reinforced by an amicus Supreme Court brief filed by the City of Philadelphia.

In their brief, the City argued that even a "soft rollout" of Photo ID during the 2012 primary "created delays, confusion, and conflicts at the polls." This, the City argued, may adversely impact those who do have Photo IDs by producing long lines on Election Day.

The Applewhite petitioners also suggested in their Post-Hearing Brief that an effort by Judge Simpson to carve out "disenfranchising language" from the provisional ballot section of the statute would amount to legislating from the bench.

Since provisional ballots are not counted on Election Night, petitioners add, there is a good chance that such a large number of provisional ballots would prevent PA election officials from completing the task of validating and tallying those which are validated, in the time required for post-election certification following a Presidential election. There is a significant risk that large numbers of otherwise eligible voters would be disenfranchised in the bargain, say the petitioners.

Will Justice McCaffery have an 'I told you so' moment?

In his blistering 7-page dissent [PDF], Justice McCaffery joined Justice Todd in describing the state Supreme Court majority's 4 to 2 decision to send this case back to Judge Simpson as an abdication of the Court's "duty to emphatically decide a legal controversy vitally important to the citizens of this Commonwealth."

In his own dissent, he added this prediction for what was likely to happen after Judge Simpson's new ruling:

I predict that, once again, we will be presented with a record that establishes that many thousands --- indeed, ultimately uncountable numbers --- of otherwise qualified electors will lack a Photo ID for purposes of the upcoming election, and hence will be disenfranchised, despite the Commonwealth's last ditch efforts to loosen the standards established by Act 18.

If Judge Simpson should ignore the powerful arguments contained in the Applewhite petitioners' Post-Hearing Brief and proceed to enjoin only a segment of the Photo ID law pertaining to provisional ballots, Justice McCaffery will be in a position to inform his colleagues: "I told you so!"

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968). Follow him on Twitter: @Cann4ing.